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Burmese dance teacher wins appeal against child sex conviction

Mark Russell

A Burmese refugee has won an appeal against his conviction for sexually abusing a nine-year-old girl when teaching her traditional dancing.

The Burmese man had been jailed for five years after being found guilty by a County Court jury of one charge of sexual penetration of a child under 16, and three charges of committing an indecent act with a child under 16.

He appealed his conviction, claiming he had not been allowed to tell the jury during his trial that he had never been in trouble with the law before his arrest on the child sex abuse charges.

The Court of Appeal's Justices Mark Weinberg, Phillip Priest and Paul Coghlan upheld the appeal on Friday and ordered a retrial.

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In their judgment, Justice Weinberg said the Burmese man and his victim were both from the Karen ethnic community.

The Burmese man came to Australia in 2006 with his wife after spending many years in a refugee camp in Thailand.

The victim, referred to as "C", was born in June 2000 and emigrated with her family to Australia in about 2005.

The Burmese man and C's family became friends through a mutual interest in Karen cultural activities, particularly the traditional done dancing.

Justice Weinberg said the man was a teacher of that form of dance.

"C's mother and father both regularly took part in done dancing," the judge said.

"Her mother was a dancer and her father a musician.

"In the latter part of 2009, and early 2010, the applicant [the accused Burmese man] arranged for dance practice sessions to be held at a number of locations, including his home.

"The applicant's family, and that of C, were close, seeing each other socially as well as for dance practice."

Justice Weinberg said the Crown alleged that on three separate occasions the accused man sexually interfered with C in the front room of his home.

"The only persons said to have been present at the time of the offending were C and the applicant," the judge said. "Essentially it was her word against his."

Justice Weinberg said it was clear from the trial transcript that there was a considerable degree of confusion on the part of both the prosecutor and defence counsel as to how to deal with the evidence of the accused Burmese man's previous good character.

The Burmese man had no prior convictions but had been convicted in March 2011 for driving under the influence, careless driving, and leaving the scene of an accident. These offences were all committed after the alleged assaults on C had taken place.

"The applicant was entitled to be tried fairly and according to law," Justice Weinberg said.

"He was entitled to have the jury told that he had no prior convictions of any kind provided, of course, that this could be done in a way which was not misleading.

"Had his counsel simply elicited from the [police] informant the fact that the applicant had no convictions of any kind, save for these particular traffic matters, there was no risk of the jury being, in any relevant sense, misled," he said.

"The jury would then have been aware that he was not a known paedophile, and that it was not suggested that he had ever previously committed offences against children.

"The benefit to the applicant of having that evidence before the jury would have greatly outweighed any prejudice associated with their being made aware of the details of his traffic offences."

The three judges upheld the appeal, quashed the Burmese man's conviction and jail sentence, and ordered he face a new trial.